by their verdict that they believed beyond a reasonable doubt that he was sane when he committed the homicide. We think, from this, that there were sufficient grounds for believing him to be insane, and that the court should have impaneled a jury to inquire into his condition.

Finding no prejudicial error in the trial, the verdict will not be disturbed, but the cause is reversed, and remanded with directions to the court before sentence to impanel a jury to inquire into the sanity of appellant.

BATTLE, J., dissents, holding that the case should be reversed and remanded for a new trial.

On Rehearing.

McCULLOCH, J. Learned counsel for appellant, in a petition for rehearing, insist that the trial judge, in telling the jury, when the conditional verdict was brought into court, that the defendant could not be executed within 30 days, "and the supposition is that defendant's attorneys will look after his interest in all proper ways," committed error to the prejudice of the defendant, which was not removed by the subsequent withdrawal of the remarks. Counsel argue with much force that the jury, from this statement, notwithstanding the subsequent withdrawal of the statement, were led to believe that the question of the defendant's mental capacity to commit the crime would be taken care of later by counsel, and that the verdict of conviction would not be conclusive of that question. They argue that the conviction attached to this verdict offered had reference to the mental capacity of the defendant at the time the homicide was committed, and not to his present mental capacity, and that the jury, by attaching the condition, expressed a doubt as to his mental capacity when he committed the homicide.

We adhere to the conclusion, formerly rendered, that the remarks of the court, taken as a whole, were not calculated to prejudice the rights of the defendant before the jury. Still, after a careful examination of the record, we are impressed with the belief that the jury, in attaching the condition to this verdict, meant to express a doubt as to the mental capacity of the defendant to commit the crime, and to require a further investigation of that question, and we do not feel sure that, when this unconditional verdict was subsequently returned, the jury had been made to understand that such verdict was conclusive of that question. There is considerable testimony tending to sustain the plea of insanity. The peculiar atrocity of the act, its inexcusability, the total absence of provocation or motive, the conduct of the accused for a few weeks before the homicide, the fact that his father was shown to be afflicted with the homicidal mania, and the opinions of several physicians and an expert of great experience in the treatment of diseases of the mind, all tend with much force to show that

it was not the act of a sane man. We do not mean to say that the evidence is insuffi cient to sustain the verdict of the jury on this question of the defendant's mental capacity to commit the crime; but the evidence in support of the plea is of such persuasive force, taken in connection with the condition attached to the verdict implying a doubt of defendant's sanity, that we are not content Ito allow the verdict and death sentence to stand. No harm can result from the delay of another trial, and we are constrained to believe that a due regard for justice demands it. The defendant made full confession of the homicide, and there is no probability of the evidence being lost on account of the delay of another trial. The case rests solely upon the question of the defendant's sanity.

The petition for rehearing is granted, and the cause is reversed and remanded for a new trial.

BATTLE, J. I concur as to the judgment of the court, but not as to the reasons given. The jury, after being out some time, returned into court a verdict which, I think, indicated that they had not agreed as to the sanity of the appellant at the time of the commission of the offense with which he was charged. The court then said to them: "Gentlemen: The verdict is not in the usual or proper form. It will not be proper to attach any condition or limitation to the verdict. In case of conviction, the defendant cannot be executed for more than 30 days; and the supposition is that defendant's attorneys will look after his interest in all proper ways." Appellant excepted to the last remark. The court withdrew that remark, but did not correct or explain it, and left the impression made by it remaining in full force. The result was the jury returned a verdict in about 25 minutes, in which they found the defendant guilty of murder in the first degree as charged in the indictment. I think the remark was prejudicial, and that appellant is entitled to a new trial.

WOOD, J., concurs with me.

HILL, C. J. (dissenting). My first impressions of this case were that it should be affirmed in entirety, but after consultation and consideration I concluded that the disposition made of the case on the hearing was the right decision to render. That decision gave full weight to the first verdict of the jury demanding an inquiry into the sanity of the defendant, and gave full weight to the second verdict, which found he was sane when he committed the crime. The evidence is ample to sustain the verdict of guilty, and I can see no reversible error in any of the proceedings in the trial, and to direct an inquiry into the present sanity or insanity of the defendant is the utmost which any occurrence at the trial demands, in my opinion; and therefore I dissent from the decision granting a new trial.

ANDREWS v. MINTER.

(Supreme Court of Arkansas.

June 10, 1905.) LANDLORD AND TENANT-SALE BY LANDLORD -TENANT'S DAMAGES.

In an action by a tenant for damages because of the landlord's refusal to deliver possession, the measure of damages was the difference between the agreed rental and the rental value.

[Ed. Note. For cases in point, see vol. 32, Cent. Dig. Landlord and Tenant, § 453.]

Appeal from Circuit Court, Benton County; John N. Tillman, Judge.

Action by W. L. Minter against Lucinda Andrews. From a judgment in favor of plaintiff, defendant appeals. Affirmed on condition that plaintiff remit a specified portion of his judgment, otherwise reversed.

Rice & Patton, for appellant. E. P. Watson, for appellee.

BATTLE, J. W. L. Minter rented from Lucinda Andrews a certain dwelling house and lot in Bentonville, Ark., for six months from March 30, 1903, for which he agreed to pay $8.33% per month. He caused to be hauled and placed on the lot two loads of manure at a cost of $5. This was done with the knowledge and consent of Mrs. Andrews. She sold the house and lot, and refused to deliver him possession. He sued her for damages, and recovered $100.

He testified that the rental value of the house and lot was from $12 to $15 per month; other witnesses, that it was less. The damage he was entitled to recover was the difference between the price he agreed to pay and the rental value. 3 Sutherland on Damages (3d Ed.) p. 2578. He was entitled to recover on account of this difference, according to his own testimony, $22, and $5 for the manure, making $27.

If he will within one week remit $73, his judgment will be affirmed for $27 and 6 per cent. per annum interest from October 3, 1903, the date of his judgment, and costs of the trial court; otherwise the judgment will be reversed, and the cause remanded for a new trial.

Kirby's Dig. § 1765, provides that, a killing being proved, the burden of proving mitigating circumstances devolves on accused, unless by the proof on the part of the prosecution it is manifest that the offense amounted only to manslaughter or that there was justification; and, by section 2387, when there is a reasonable doubt of the defendant's guilt on the testimony he is entitled to an acquittal. On a prosecution for murder the court correctly charged on selfdefense, and gave section 1765 as an instruction, but subsequently stated that while if, on the whole case, there was a reasonable doubt,

there must be an acquittal, yet, as to matters of mitigation, accused would be required to furnish a preponderance of the evidence. Held, that such statement was erroneous.

Appeal from Circuit Court, Pike County; James S. Steele, Judge.

George Cogburn was convicted of murder in the second degree, and he appeals. Reversed.

Robt. L. Rogers, Atty. Gen., for the State.

RIDDICK, J. The defendant, George Cogburn, was indicted by the grand jury of Montgomery county for murder in the first degree on account of the killing of Jim West. On the trial the evidence tended to show that Cogburn and West had previously had a fight, and that there was a bad state of feeling between them. West said afterwards that Cogburn had hit him with a rock, and some of the witnesses stated that West threatened to get even with him; saying that he intended to "peck his head with the same rock." Still others testified that he had threatened to kill him. With this state of feeling between them, they attended a picnic at Fancy Hill, in that county, on the 25th day of July, 1903. West was in company of one Perrin. George Cogburn, the defendant, and one of his cousins had a lemonade stand at the picnic, and several of his brothers were at the picnic. Cogburn and his brothers were probably anticipating trouble from West, for they had with them at the lemonade stand two Winchester rifles. West and Perrin came up to the stand, Perrin having a Colt's 44 pistol in his hand; and some of the witnesses say that West had a pistol also. Cogburn and his brother, being perhaps apprehensive that West and Perrin were about to assault them, fired upon them with the Winchester rifles, killing both of them almost instantly. Several witnesses for the state testified positively that at the time of the shooting neither West nor Perrin was making any hostile demonstration toward the defendant or his brother. On the other hand, several witnesses testified for the defendant that Perrin and West approached the lemonade stand in a threatening manner; that, as they approached, Andy Cogburn, a brother of George, commanded the peace, to which Perrin and West replied, "Damn your peace;" that Perrin made a demonstration as if he was about to shoot Andy Cogburn, when the defendant said, "Hold on there;" that Perrin then turned and fired at defendant a Colt's 44 revolver, who returned the fire with his rifle, and that about this time West also fired at defendant with a pistol; and that defendant then turned and shot him. Other shots were fired by a brother of the defendant. In other words, the testimony of a number of witnesses for the state tended to show that defendant was guilty of murder, while, on the other hand, the testimony of other witnesses, most of whom were related to the defendant, tended to show that he shot in selfdefense. The jury found the defendant guilty

of murder in the second degree, and assessed his punishment at five years in the penitentiary.

On the trial the court gave the jury very full instructions in reference to the law of self-defense and the other points involved in the case, and we see no error in these instructions. Among them was the following, which is a copy of the statute: "The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve upon the accused, unless by the proof on the part of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide." Kirby's Dig. § 1765. This section of the statute, it will be seen, is a rule of law to be applied when the killing has been proved, and where nothing is shown to justify or excuse such act. In such a case it may well be presumed that there was no justification, or the defendant would have shown it. In commenting on this instruction the attorney for the state said: "The court tells you that, under this instruction which I read to you, that, the killing being proved, the burden of proving circumstances of mitigation and justification devolves on the accused. Under this law, after we introduced Jim West we could have rested our case, and the burden was upon them to establish justification, and, if they fail to satisfy you by a preponderance of evidence that the killing was justifiable, then you should convict him." To which the defendant objected, and the court said: "While it is true that if, upon the whole case, they had a reasonable doubt, they must acquit, yet, as to matters of mitigation, he would be required to furnish a preponderance of the evidence." Now, the argument of the prosecuting attorney, as shown in the record, was not in accordance with the law. For, while it is true, as our statute declares, that, when the killing is proved, the burden of showing circumstances that mitigate or excuse the crime devolves upon the accused, where there is nothing in the evidence on the part of the state that tends to mitigate, excuse, or justify the killing, still the burden on the whole case is on the state; and, when evidence is introduced either on the part of the state or the defendant which tends to justify or excuse the act of the defendant, then, if such evidence, in connection with the other evidence in the case, raises in the minds of the jury a reasonable doubt as to the guilt of the defendant the jury must acquit. This is settled in this state by the statute which declares that "when there is a reasonable doubt of the defendant's guilt upon the testimony in the whole case he is entitled to an acquittal." Kirby's Dig. § 2387. But if this statement of the prosecuting attorney was correct-that when the killing is proved the defendant must show by a preponderance of the evidence that the killing was justifiable-the

jury would have to reject his defense whenever it was not supported by a preponderance of the evidence. This would limit the doctrine of a reasonable doubt to the fact of the killing, and, when that was established beyond a reasonable doubt, it would put the burden on the defendant of establishing justification by a preponderance of the evidence; and, if he failed to do so, the jury would be required to convict him, even though the evidence adduced by him was sufficient to raise a reasonable doubt as to his guilt. But it cannot be said that the defendant must make out his defense by a preponderance of the evidence, and also that he is entitled to an acquittal if on the whole case the jury have a reasonable doubt of his guilt, for the two propositions are to some extent inconsistent. Testimony not sufficient to establish a fact by a preponderance of the testimony may be sufficient to raise a reasonable doubt as to the existence of the fact. To tell the jury that they must convict unless the fact of self-defense is established by a preponderance of the testimony, and also that they must acquit if they have a reasonable doubt as to whether the defendant acted in self-defense, is telling them to follow two rules which may lead to very different results. The statute, it will be noticed, says nothing about preponderance of evidence. It says that, the killing being shown, the burden is on the defendant to show facts that justify or excuse the homicide. When, however, he introduces his proof, the question, says Mr. Wharton, arises: "Is it sufficient for him if he raises a reasonable doubt as to the defense he advances? Or must be establish this defense by a preponderance of proof in order to entitle him to an acquittal?" He answers the question by saying that when the defense traverses some essential ingredient of the indictment, such as malice or premeditation, it is sufficient if the proof raises a reasonable doubt. If the defendant undertakes to show that the act was done in necessary self-defense, this tends to rebut the allegation of malice; and, if the jury have a reasonable doubt on that point, they should acquit, for that is a reasonable doubt as to whether an essential charge in the indictment is true or not. It is otherwise when the defense does not traverse any essential averment of the indictment-for instance, when former conviction or acquittal of the same offense is set up. Wharton's Crim. Neg. §§ 331, 334. Our statute, as before stated, has answered the question for this state in the same way, by declaring that, when there is a reasonable doubt on the whole case, the jury must acquit; thus showing that the defendant is not required to make out his case by a preponderance of the evidence. The statement of the law made by the prosecuting attorney was clearly wrong, and when objection was made to it the court should have stopped him and told the jury to disregard that statement. Tanks v. State, 71 Ark. 459, 75 S. W. 851. But the court did not do so,

and, in effect, told the jury that while, if they had a reasonable doubt on the whole case, they should acquit, yet that as to matters of mitigation the defendant must furnish a preponderance of the evidence. We have already shown that this statement of the law is contradictory, and is not correct. As defendant did furnish the evidence of several witnesses tending to show that the killing was in selfdefense, he had the right to have the jury told that it was not necessary for his acquittal that the evidence on this point should preponderate in his favor, but that, if it only raised a reasonable doubt of his guilt on the whole case, he was entitled to an acquittal. The court so stated the law to the jury in his general instructions, but permitted the prosecuting attorney to argue to the contrary before the jury. This ruling of the court upon objection to the argument was, we think, erroneous and prejudicial to the defendant, for which the judgment must be reversed, and a new trial ordered.

TRACK-CONTRIBUTORY NEGLIGENCE.

Where one walking on a switch track in a railroad yard, and who was familiar with the tracks, looked and saw a train starting, and thought that it was moving upon the track on which he was walking, and he stepped over to another track, and was injured by the train, which was moving on that track, he was guilty of contributory negligence.

[Ed. Note. For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1287, 1294.] 2. SAME DISCOVERED PERIL-NEGLIGENCE.

In an action for injuries received by one walking on a railroad track, held, that the evidence failed to show negligence on the part of the operatives of a locomotive in not stopping the train after discovering plaintiff's peril.

Appeal from Circuit Court, Monroe County; Geo. M. Chapline, Judge.

Action by Burns against the St. Louis Southwestern Railway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

On the 14th day of October, 1901, appellant was conducting a hay, farming implement, and lumber business at Stuttgart. This business brought him often to appellee's depot at Stuttgart, where he had barns on each side of the numerous switches of appellee at the depot, and wagon scales between the barns, where hay and other farm products were weighed. He often daily passed over the many switches, as well as the "main" and "passing" track at the depot. On the day appellant was injured, to use the language of his counsel in describing the injury: "He had just left the depot, and saw a train standing just northeast of the depot at the tank, and knew that it could not get

on the 'passing' track until it came 30 steps south of the depot, and about the time said freight train reached said passing track he turned round and looked at it, and saw it turn, as he thought, on the passing track which he was then on, as it was the custom of trains of that kind to do. He was familiar with the different trains on the Cotton Belt Railroad. Some are local freight trains, and some are through freight trains, and there are 15 or 20 passing during the day. Now, he walked down the passing track for some distance, which was the common walkway, and, hearing the train move rapidly, thought it would be safer to step over on the main track and be further away, so it could pass. Now, he used his eyes, and he thought he saw it go on the passing track, as it was the custom of that class of trains to do so." The train ran him down while he was on the main track, injuring him severely. He brought suit, setting out in minute details the situation at the depot of the houses, trains, tracks, and all the circumstances of the unfortunate occurrence. His specifications of negligence were that the train was running at an unusually rapid speed-at least 14 miles per hour-when it should have been running not exceeding 4 miles per hour in obedience to the city ordinance; that the men in charge of the train were not keeping a constant lookout-had they done so, they could have prevented the injury; that on account of the unusual speed the train could not be stopped after appellee's servants discovered his situation, whereas it might have been stopped after seeing him, had the train been running not more than 4 miles per hour, as required by the ordinance, etc. The answer denied all material allegations, and set up contributory negligence. After the evidence was in, the court, at the request of appellee, directed a verdict in its favor.

H. A. Parker, J. R. Parker, and C. E. Pettit, for appellant.

S. H. West and J. O. Hawthorne, for appellee.

Continental Imp. Co. v. Stead, 95 U. S. 161, 24 L. Ed. 403; Ry. v. Houston, 95 U. S. 697, 24 L. Ed. 542; Schofield v. Ry., 114 U. S. 615, 5 Sup. Ct. 125, 29 L. Ed. 224; Ry. v. Blewett, 65 Ark. 235, 45 S. W. 548; Brennan v. Delaware Railroad, 83 Fed. 124, 27 C. C. A. 418; Tucker v. Baltimore Ry. Co., 59 Fed. $38, 8 C. C. A. 416.

WOOD, J. (after stating the facts). It is unnecessary to discuss the evidence at length. The appellant was guilty of contributory negligence, according to the undisputed facts, and it was the plain duty of the court to declare, as matter of law, that appellant had no cause of action.

On the question of contributory negligence this was the testimony of appellant himself, as abstracted by his counsel: "He started

from the depot to go to a pair of scales to weigh a load of hay, and he was on what is called the 'passing track,' and, remembering that a freight train was at the tank just northeast of the depot, about 100 yards, and hearing it start from the tank, when it got just southwest of the depot a few feet-a point where all the switches branch out-he looked back, and thought he saw the engine heading for the passing track, which it was customary for trains of that kind to do. He then stepped across the usual traveled way between the two tracks, and, to be sure he was out of the way, he stepped over in the center of the main track, and immediately the engine struck him, when he was just about at the southern or western edge of College street, on a line with the western line of College street. After he stepped on the main track he walked at least thirty yards, or ninety feet, before he was struck." This leaves nothing for the jury. According to familiar rules often announced by this court, appellant did not make that use of his senses for his own protection which the law exacts before he can recover for the negligence of the company that concurred in his injury. Ry. v. Martin, 61 Ark. 549, 33 S. W. 1070; Ry. v. Blewitt, 65 Ark. 235, 45 S. W. 548; Ry. v. Crabtree, 69 Ark. 134, 62 S. W. 64.

Appellant's great familiarity with the tracks and trains where he was injured, and the ever imminence of peril where there was so much passing and switching, should have kept his sense alert, and have caused him to walk between the railroad tracks, where, according to the witnesses, it was "nice and smooth," and free from all danger. The law wisely and justly holds the company liable for its own acts of negligence which result in injury to another. But there would be no reason or justice in holding it responsible for the mistakes of another which it did not cause, and could not prevent, and but for which there would have been no injury notwithstanding its own negligence. Ry. v. Cullen, 54 Ark. 431, 16 S. W. 169; Ry. v. Ross, 56 Ark. 271, 19 S. W. 837; Ry. v. Tippett, 56 Ark. 457, 20 S. W. 161; Catlett v. Ry., 57 Ark. 461, 21 S. W. 1062, 38 Am. St. Rep. 254; see, also, Ry. v. Moseley, 57 Fed. 921, 6 C. C. A. 641, and other cases cited in appellee's brief.

There is no proof whatever that would warrant the conclusion that appellee wantonly, maliciously, or intentionally injured appellant, or was guilty of such negligence after discovering appellant's peril as to make an inference of this kind justifiable. Mo. Pac. Ry. v. Moseley, 57 Fed. 921, 6 C. C. A. 641. On the contrary, appellant alleges in his complaint that "they were running the train at such an unusual speed that it could not be stopped after seeing him," and the evidence on the part of the engineer and fireman was affirmative and positive that they "did not see him on the main line, and never knew he was there until after the ac

Where plaintiffs retained as collateral a note of a third person transferred by defendant before executing his note to them, they were bound only to use reasonable diligence to collect it, and were liable only for gross negligence in failing to collect the note and protect defendant from loss, and he cannot complain of mere delay in forcing payment of the collateral note. [Ed. Note. For cases in point, see vol. 7, Cent. Dig. Bills and Notes, §§ 1007, 1067.] 3. INTEREST-RATE AFTER MATURITY.

Where a note bearing 10 per cent. interest contains no stipulation for interest after maturity, interest must be computed at 10 per cent. from date to maturity and thereafter at 6 per cent.

[Ed. Note. For cases in point, see vol. 7, Cent. Dig. Bills and Notes, § 281.]

Appeal from Poinsett Chancery Court; Edward D. Robertson, Chancellor.

Action by Johnson, Berger & Co. against A. R. Downing. From a decree for defendant, plaintiffs appeal. Reversed.

Appellants, Johnson, Berger & Co., a firm of merchants at Jonesboro, Ark., brought this suit in chancery to foreclose a mortgage executed to them by appellee, A. R. Downing, on January 3, 1899, upon certain land in Poinsett county, to secure payment of a debt in the sum of $521.31, evidenced by promissory note. The greater part of the note is admitted to have been paid; the only dispute being as to two credits claimed by appellee, which, if allowed, extinguished the balance of the debt. These disputed credits are as follows: That appellee indorsed and delivered to appellants, as collateral security, the negotiable promissory note of one Cox and two other persons, for the sum of $100, dated September 27, 1898, due and payable 49 days after date, but which was never paid, nor the amount credited to appellee, though the appellants could (so it is alleged by appellee), by proper diligence, have collected said note; and he alleges that appellants neglected to present said note at maturity to the makers, and to notify appellee, as indorser, of the nonpayment thereof. Also that appellee indorsed and delivered to appellants, as collateral security, the note of one Cahoon for the sum of $80, secured by chattel mortgage, and that appeilants, without